H-1B is one of the more popular visas that foreign nationals and aliens consistently apply for, as they hope to gain legal status and permission to work in the United States. However, the nature of the selection process and the large amounts of applications make the attainment of this visa challenging for many. For the 2019 Fiscal Year, there were approximately 190,000 H-1B applications for a mere 85,000 visas.
Besides the intense competition from large number of applications, and the scrutiny of the USCIS, the selection process is also difficult. Applications must first be selected from the random lottery, and then receive approval from USCIS before they can be in valid H-1B status.
These hurdles leave many H-1B hopefuls with the need to have backup plans, if they cannot get an H-1B. Please note that the options listed are primarily intended for those who were not selected for H-1B visas and are not eligible for OPT Extensions and do not want to leave the U.S. upon expiration of their current status. Below are some options:
1. Return to School.
Returning to school is one of the best options available to those who were not successful in being selected in the H-1B. The first benefit is that the individual will be able to maintain their legal status through the F-1 designation and, thus, avoid accumulating unlawful presence in the U.S. or having to leave the country. The second, and perhaps most beneficial benefit, is that the individual earns another degree to distinguish himself/herself for job opportunities. Furthermore, those who had only earned an undergraduate degree, can now earn a graduate degree and retry for the H-1B as Master’s Cap, thereby increasing their chances of selection this time around.
In other words, by returning to school, one is able to become more competitive for jobs, earn an additional academic accolade, and be eligible for another try at the H-1B, all while remaining legally in the United States. This option is also beneficial as it may elevate an individual into becoming eligible for immigrant petitions like EB2 or EB3, and even EB1, given the individual’s achievements and expertise.
Refer to this previous Ross Yang Law Tips article for information about how to choose a school in the U.S. as an international student.
2. Apply for Other Visas
Another option is to apply for the O-1 Visa – intended for those who have demonstrated and continue to demonstrate outstanding achievement in their fields of work and study. The advantages of the O-1 include: no specific timeline or caps as USCIS can approve as many O-1 visas as it wants, no prevailing wage determination or LCA needed, and the visa can be obtained for up to three years with no maximum period of validity. There is also the Premium Processing* option available for the O-1, which allows applicants to receive a decision on their status within 15 days of their case being received by USCIS.
The O-1 is different, however, in its eligibility requirements for candidates. Typically, those applying for the O-1 have risen to the top of their field and have an excellent record of outstanding achievements in their field. Evidence of outstanding achievements include: numerous citations and publications in high-impact and prestigious journals and conference symposiums, as well as, patents, Ph.D. and other graduate level degrees from top institutions, expert reviewer or judging experience for high-ranking publications and symposiums, and international acclaim through original contributions.
There is also the L-1 Visa, which involves an intracompany transfer, meaning an individual arrives to the U.S. with a visa to work for the U.S. affiliate or branch of the foreign company.
Other options that are still possible, but to fewer individuals include: B-1 Visitor Visa and TN-1 Visa.
*The Premium Processing is currently an option for O-1, however, the client or attorney must check USCIS to confirm that this remains to be the case as it can change.
3. Changing Status Back to that of Dependent
This option is another one available but is not applicable to all H-1B applicants seeking backup plans. Nonetheless, if the individual is married to someone in another valid status, he or she can change his or her status to that of a dependent to legally remain in the United States. For instance, if the spouse is able to receive H-1B while the applicant is rejected, then the applicant changes his or her status to H-4 to maintain legal status. Similarly, if one is married to someone with an O-1 visa, he/she can change their status to O-3 and maintain legal status. Naturally, this is not the best or most applicable option, but it is another to be considered by those who may fit the eligibility.